AGO 1957 No. 48 - Apr 16 1957
NOTARY PUBLIC ‑- POWERS ‑- UNAUTHORIZED ACTS
A notary public is a public officer whose authority consists of those powers expressly conferred upon him by statute or which may necessarily be implied therefrom, and the use of his position for the purpose of imputing an authority not so conferred upon him is unauthorized.
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April 16, 1957
Honorable Albert D. Rosellini
Governor of the State of Washington
Olympia, Washington Cite as: AGO 57-58 No. 48
Attention: Mr. J. B. Gibson
We acknowledge receipt of your request as to whether or not, in our opinion, the notary public executing the acknowledgement to two accompanying collection agency forms is acting within the proper purview of his office as a notary public.
Our answer is in the negative.
These two forms are printed on letter-size forms with the letterhead of the collection agency at the top. One is entitled "NOTICE OF LEGAL OR STATUTORY ACTION" in large red letters below the letterhead. Just below this on the left is a box in which appear the names of the creditor and the [[Orig. Op. Page 2]] debtor. On the right opposite the box, also in large red letters, are the words "NOTICE BEFORE SUIT." In the body of the form the debtor is notified to "TAKE NOTICE," first, that the "CREDITOR claims, and will certify under oath" the amount owed; second, that "Although due and demanded," no part has been paid; and third, that "unless said amount is paid" by a certain time or arrangements made for settlement, "suit will be started and prosecuted vigorously" and the debtor's property attached or any money due him garnisheed. Then appears the following:
"This is to certify that the above named debtor has been properly notified of this just and lawful debt, prior to legal suit.
"Notarized before me this day of , One Thousand Nine Hundred and A.D.
"Notary public in and for the State of Washington. Commission expires
"THIS NOTICE IS FINAL"
The other form, on the same collection agency letterhead, is entitled as follows:
"GARNISHEE NOTICE TO EMPLOYER"
The employer is told that the notice is sent to him as a courtesy because it may become necessary to garnishee his employee, naming him, in which case the employer will be made [[Orig. Op. Page 3]] a party and may be compelled to bring all his books, records and vouchers into court for examination and evidence.
The hope is expressed that the employer "will bring influence to bear, causing said Employee to adjust said claim at once."
Stamped in large red letters diagonally across the face of the form is the following:
"ORIGINAL SENT TO EMPLOYER"
and, again, at the bottom of the form is this:
"CERTIFIED STATEMENT OF ACCOUNT
"I hereby certify that I have examined the record in the matter of the above mentioned claim, and have found the account to be true and correct to the best of my knowledge and belief.
"Notarized before me this day of , One Thousand Nine Hundred and A.D.
"Notary Public in and for the State of Washington. Commission expires "
We believe that the certificate of the notary public represents an unauthorized exercise of the powers of his office.
A notary public is a public officer (66 C.J.S., Notaries, 609, § 1a; 1914 AGO 445; seeSaevoff v. Steffen, 123 Wash. 225), appointed by the governor (RCW 42.28.010) for a four-year term unless sooner removed (RCW 42.28.020).
[[Orig. Op. Page 4]] The right to be a public officer, or to exercise the powers and authority of a public office, must find its source in some provision of the public law. The authority consists of those powers which are expressly conferred upon him by the act appointing him, which are expressly annexed to the office by the law creating it, or some other law referring to it, or which are attached to the office by the common law. (Mechem on Public Officers (1890), §§ 501, 507.) The statutes should always be consulted in determining what powers notaries of a given state possess. (John's American Notaries, 5th Ed. § 19, p. 19) In this state RCW 42.28.040 defines the powers of a notary public (State v. Howard, 91 Wash. 481, 487), and in so far as here pertinent provides that:
"Every duly qualified notary public is authorized in any county in this state:
"(1) To transact and perform all matters and things relating to protests of bills of exchange and promissory notes, and such other duties as pertain to that office by the custom and laws merchant;
"(2) To take acknowledgments of all deeds and other instruments in writing, and certify the same in the manner required by law;
"(3) To take depositions and affidavits, and administer all oaths required by law to be administered. . . ."
In general, the office is ministerial (66 C.J.S., Notaries, 609, § 1b). Administering an oath prescribed by law has been held to be a ministerial act. Spokane & Idaho Lumber Co. v. Loy, 21 Wash. 501, 505. It is the general rule that the [[Orig. Op. Page 5]] authority of ministerial officers will be strictly construed, and will be held to include those powers only which are expressly conferred or are necessarily to be implied. Mechem on Public Officers, 345, § 552.
The forms under consideration, although they state that they are "Notarized before me," in fact constitute certificates of the notary, since no other person has subscribed to an oath. As pointed out in John's American Notaries, supra, in § 23 at page 25:
"The acts performed by a notary public are shown by his official certificates or jurat. A certificate has been defined as 'a written statement, by a person having an official or public status, concerning some matter within his knowledge or authority.' . . ." (Cyc. Law Dict.)
The question here then resolves itself into whether a notary is authorized to make a certificate for the purposes of such notices.
There is a presumption that where a public officer has assumed to do an act by virtue of his official power, that he was authorized to do the act in the manner in which he has done it. Mechem on Public Officers, 346, § 525. Consequently, when a notary public has assumed to execute a certificate, as here, there is a presumption that he was acting pursuant to legal authority so to do. And if such authority in fact did not exist, the use of the certificate constituted a device to mislead the public into believing that the notary was exercising powers which he did not possess.
Obviously, by applying the rules of strict construction to the powers of a notary as set out in the statute, no authority can be found, either expressly or by necessary implication, which authorizes him to execute a certificate in the forms attached [[Orig. Op. Page 6]] to these notices. It appears to be a calculated design to import legal authenticity to the acts of a public official in connection with matters concerning which he had no legal authority.
We believe that the authority granted for a notary to exercise the powers of his official position must be found either in the express provisions of the statute, either RCW 42.28.040, or some other statute conferring a power on the officer, or which must necessarily be implied therefrom. The authority to do an act cannot be predicated on the absence of express prohibition.
As was said inState ex rel. Port of Seattle v. Department of Public Service, 1 Wn. (2d) 102, at page 112:
"'It is a general principle of interpretation that the mention of one thing implies the exclusion of another thing; expressio unius est exclusio alterius.' 25 R.C.L. 981, § 229."
In other words, the mere fact that there is no express or implied authority denying the right to execute a certificate not authorized by law does notipso facto mean that there is no prohibition against making such a certificate.
We are disposed to the conclusion that where no authority is granted to a public officer to perform a ministerial act, none exists for him so to do, and that the utilization of his position for the purpose of imputing an authority which he does not possess is unauthorized.
Very truly yours,
JOHN J. O'CONNELL
Assistant Attorney General